Judge Cynthia A Freeland, Case 37-2023-00022018-CU-WT-NC 2023-12-08 Tentative Ruling

Judge: Cynthia A Freeland, Case: 37-2023-00022018-CU-WT-NC, Date: 2023-12-08 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - December 07, 2023

12/08/2023 01:30:00 PM N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited Wrongful Termination Motion to Quash (Civil) 37-2023-00022018-CU-WT-NC LILIA GARCIA-BROWER, CALIFORNIA STATE LABOR COMMISSIONER, DIVISION OF LABOR STANDARDS ENFORCEMENT, DEPARTMENT OF INDUSTRIAL CAUSAL DOCUMENT/DATE FILED: Motion to Quash Service of Summons, 07/31/2023

Defendants Daniel Kunz and Tanya Kunz (collectively, 'Defendants')'s special motion to quash service of process is denied.

Courts have personal jurisdiction over a defendant in the pending action if that defendant has been served with the summons and complaint and there is a proper basis for exercising personal jurisdiction over the defendant. See Cal. Code Civ. P. § 410.50(a). Where a defendant properly moves to quash service of summons the burden is on the plaintiff to prove facts requisite to the effective service. See Sheard v. Superior Court (1974) 40 Cal. App. 3d 207, 211. A defendant is not required to respond to a defective service of summons, even if he/she/it has actual knowledge of the action. See American Exp.

v. Centurion Bank v. Zara (2011) 199 Cal. App. 4th 383, 392; Kappel v. Bartlett (1988) 200 Cal. App. 3d 1457, 1466.

Except as otherwise provided by statute, a plaintiff must serve a summons on a defendant within California by one of the methods prescribed by California Code of Civil Procedure §§ 413.70-417.40.

The rule governing substitute service provides, in pertinent part: [i]f a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of the summons and complaint at the person's dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing.

Cal. Code Civ. P. § 415.20(b). An individual may be served by substitute service generally only after a good faith effort at personal service has been made first. What constitutes good faith or reasonable diligence has been the subject of litigation, and courts have held that generally two or three attempts to personally serve an individual at a proper place constitutes reasonable diligence to effectuate personal service. See Rodriquez v. Cho (2015) 236 Cal. App. 4th 742, 751; American Exp. Centurion Bank v. Zara, 199 Cal. App. 4th at 389. Additionally, the San Diego County Superior Court has further clarified what constitutes the appropriate reasonable diligence necessary to effectuate substitute service by providing, in pertinent part, that: Calendar No.: Event ID: TENTATIVE RULINGS

3002566 CASE NUMBER: CASE TITLE: LILIA GARCIA-BROWER, CALIFORNIA STATE LABOR 37-2023-00022018-CU-WT-NC To qualify for other than personal service of a complaint and summons under Code of Civil Procedure section 415.20 et seq., reasonable diligence aimed at providing the defendant with actual notice must be established (e.g., personal service must be attempted on at least three different days at three different times of day). All attempts cannot be in the a.m. or all in the p.m. At least one of the three attempts must be before 8 a.m. or after 5:30 p.m., and at least one of the three attempts must be between the hours of 8 a.m. and 5:30 p.m. or on Saturday or Sunday at any time.

San Diego Rules of Court, Rule 2.1.5.

In this case, the undisputed evidence establishes that Plaintiff Lilia Garcia-Brower ('Plaintiff') attempted to serve Defendants personally on three different days at three different times as required by the San Diego Local Rules. See Robles Decl., ¶¶6-8, 10-11, Ex. B. When those efforts proved unsuccessful, Plaintiff, through its registered process server, served 'Pat Kunz,' a person at Defendants' residence who was 'apparently in charge.' Ibid., ¶ 9. Thereafter, the summons and complaint were sent via First Class U.S. mail to both Defendants at their residential address, 930 Brighton Ct., Vista, CA 92081-8920.

See Morales Decl., ¶¶ 3-4. This is sufficient to effectuate proper substitute service.

Defendants nonetheless challenge the propriety of service on the grounds that: (1) the process server only attempted to personally serve them on two days before attempting substitute service on June 17, 2023; (2) the proof of service reflects that 'Pat Kunz' was served but there is no 'Pat Kunz'; (3) the person who received the summons and complaint, Pat Graves, was not a 'competent member of the household or person, apparently in charge' and was not authorized to accept service; (4) the process server did not identify the documents being served; (5) there was a three-day delay in serving the documents by mail; and (6) Defendants did not receive copies of the summons and complaint by mail.

The court respectfully disagrees that any of these purported challenges undermines the propriety of the substitute service effectuated in this case.

Notably, there is no dispute that Plaintiff's process server attempted personal service on three occasions before effectuating substitute service. See Robles Decl., ¶¶6-8, 10-11, Ex. B. Additionally, while there is conflicting evidence as to whether 'Pat' identified himself as 'Pat Kunz,' there is no dispute that the papers were given to 'Pat' by the process server. Given this, whether it was Pat Graves or Pat Kunz seems to be a minor point that should not defeat service. See Bein v. Brechtel-Jochim Group, Inc. (1992) 6 Cal. App. 4th 1387, 1394 ('But minor, harmless deficiencies will not be allowed to defeat service.' citing Espindola v. Nunez, supra, 199 Cal. App. 3d 1389, 1391.) Indeed, to the extent that the service provisions are now to be liberally construed to effectuate service and uphold jurisdiction if actual notice has been received by the defendant, the purpose of the service statute is not undermined by the court's conclusion. See Bein, 6 Cal. App. 4th at 1392; Pasadena Medi-Center Associates v. Sup. Ct. (1973) 9 Cal. 3d 773, 778.

While Mr. Graves was not a member of the Kunz family and did not reside with the Kunz family, the evidence presented demonstrates that Mr. Graves was a person 'apparently in charge' at the time the process server delivered the papers. As the Bein court explained: 'The evident purpose of Code of Civil Procedure section 415.20 is to permit service to be completed upon a good faith attempt at physical service on a responsible person . . . .' (Ibid., italics added.) Service must be made upon a person whose 'relationship with the person to be served makes it more likely than not that they will deliver process to the named party.' (50 Court St. Assoc. v. Mendelson et al. (1991) 151 Misc.2d 87 [572 N.Y.S.2d 997, 999].) Bein, 6 Cal. App. 4th at 1393-1394.

As the Bein court made clear, the person with whom the papers are left need not be a member of the family. As a result, the fact that Mr. Graves was not a member of the family and did not live at the residence is not dispositive of the issue. Mr. Graves, with Defendants' trust and consent, had access and Calendar No.: Event ID: TENTATIVE RULINGS

3002566 CASE NUMBER: CASE TITLE: LILIA GARCIA-BROWER, CALIFORNIA STATE LABOR 37-2023-00022018-CU-WT-NC did gain entry to Defendants' home given that he was watching Defendants' dogs. Mr. Graves accepted the papers and appeared to be a responsible person whose relationship with Defendants made it more likely than not that he would deliver the papers to Defendants.

As for the documents served upon Mr. Graves, Mr. Robles' declaration reflects that he informed Mr.

Graves that the papers were legal papers, which is required under the pertinent statute. Finally, while there may have been a three-day span between when Mr. Graves was provided the summons and complaint and when the documents were mailed, via First Class U.S. mail, the documents nonetheless were mailed in compliance with the Code. To the extent that Defendants deny receipt of any summons and complaint by mail, the fact remains that they nonetheless received the documents as evidenced by the fact that Mr. Kunz contacted Plaintiff's counsel about the complaint on July 7, 2023. See Espinosa Decl., ¶¶ 10-12, Ex. B. In sum, the court is persuaded that substitute service was properly effectuated.

In light of the foregoing, the court denies Defendants' special motion to quash service of process.

Defendants shall file and serve a responsive pleading within fifteen (15) days of this hearing.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, December 8, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of December 8, 2023. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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